Do Ask, Don’t Tell

An employee at a New York state company involved in a union decertification vote wrote “vulgar, offensive, or threatening statements” on union newsletters in a company break room. The statements were aimed at inducing fellow employees to support the union.

During a company investigation begun after female employees complained, he lied about writing them. He was terminated for both writing the statements and lying about it, but the National Labor Relations Board reversed that decision. The company could investigate, the NLRB found, but it could not fire the employee for writing the statement. That amounted to “protected union activity.” While the company could investigate, the employee had a right to lie in response, the NLRB held.